Appeal No.	 EAT/260/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 1998

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MRS R A VICKERS

MR J WISE 	APPELLANT

MR R SUTHERLAND	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR P O'BRIEN
(Representative)
18a Carlisle Avenue
St Albans
Herts AL3 5LU	

	JUDGE PETER CLARK:     This appeal raises a short point on continuity of employment.

	The Appellant, Mr Wise, commenced employment with the Respondent in 1986.  On Wednesday 26 March 1997 he offered his resignation, which was accepted by the Respondent.  The following day the two men met.  The Industrial Tribunal Chairman, sitting alone, accepted the Respondent’s evidence that on that occasion the Appellant asked for his job back.  The Respondent told him that he would only consider re-employing the Appellant if he first had a few days to think about whether he could work as part of a team.  If he then wished to have a new opportunity with the Company, the Respondent would only re-employ him on the basis that it was a new contract and a fresh start entitling both sides to a trial period of three months.

	On 1 April 1997 the Appellant resumed work for the Respondent, and continued working until he was dismissed on 13 June 1997.

	On those facts the Tribunal found that continuity of employment had been broken and that the Appellant had not completed two years of qualifying service for the purposes of unfair dismissal protection.

	In so finding, the Chairman rejected an argument presented to him on behalf of the Appellant under Section 210 of the Employment Rights Act 1996 that the Appellant was not away from work for more than a week and therefore that absence should not count in computing the period of continuous employment.

	Today it is submitted on behalf of the Appellant by Mr O’Brien that in his approach to the question of continuity the Chairman erred in law.

	We have considered specifically the provisions of Section 212 (1) of the Act which provides:

“Any week during the whole or part of which an employee’s relations with his employer are governed by a contract of employment counts in computing the employee’s period of employment.”

	We note that, irrespective of the number of hours worked during a week, that week will count towards a period of continuous employment:  see Colley v Corkindale [1995] ICR 965 and now the provisions of the Employment Protection (Part-Time Employees) Regulations 1995 (SI 1995/31).

	On the facts as found the Appellant was employed in one week until Wednesday 26 March 1997, and in the following week, from Tuesday 1 April.  It is therefore arguable that both weeks count under Section 212 (1).  There was no break in continuity between 1986 and 13 June 1997.

	In these circumstances we shall allow the appeal to proceed on this point only.  Having considered the present grounds of appeal we think that they should be struck out and we give the Appellant 14 days in which to lodge an amended Notice of Appeal, setting out the ground under Section 212 (1) which we have identified in this judgment.

	If, and insofar as it may be said that this is a new point, not specifically taken below, we think that it goes to the Industrial Tribunal’s refusal to accept jurisdiction and is a point which can be determined on the existing findings of fact.

	In these circumstances it would be right to allow the point to be taken on appeal.  The case will be listed Category C for two hours.  Skeleton arguments should be exchanged between the parties not less than 14 days before the date fixed for the full appeal hearing and copies of those skeleton arguments are to be lodged with this Tribunal at the same time.